Citation Nr: 0501192
Decision Date: 01/14/05 Archive Date: 01/19/05
DOCKET NO. 99-03 987A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to an initial disability evaluation in excess
of 10 percent for tendonitis of the right (major) shoulder.
3. Entitlement to an initial compensable disability
evaluation for cervical dysplasia.
4. Entitlement to an initial compensable disability
evaluation for molluscum contagiosum.
5. Entitlement to an initial compensable disability
evaluation for residuals of excision of pilar cyst from the
scalp.
6. Entitlement to an initial compensable disability
evaluation for diabetes mellitus.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
C. Kang, Associate Counsel
INTRODUCTION
The veteran had active service from November 1992 to June
1997.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision of the
Nashville, Tennessee, Regional Office (RO) that denied
service connection for bilateral hearing loss and headaches
and established service connection for right shoulder
tendonitis with an evaluation of 10 percent, cervical
dysplasia and molluscum contagiosum with a noncompensable
evaluation, excision of the pilar cyst from the scalp with a
noncompensable evaluation, and diabetes mellitus with a
noncompensable evaluation. In January 1999, the veteran
submitted her notice of disagreement with the June 1998
decision. In February 1999, the RO issued the statement of
the case. In March 1999, the veteran submitted the
Substantive Appeal. In March 1999, the veteran was afforded
a hearing before a RO officer.
In an October 1999 rating decision, the RO, in pertinent
part, established service connection for headaches and
assigned a noncompensable evaluation. As the issue of
service connection for headaches has been fully resolved, the
issue is dismissed. See 38 U.S.C.A. § 7105. The veteran has
been represented by the Georgia Department of Veterans
Services throughout this appeal.
The Board observes that the veteran has appealed from the
initial evaluation assigned for her service-connected
tendonitis of the right shoulder, cervical dysplasia and
molluscum contagiosum, residuals of excision of pilar cyst
from the scalp, and diabetes mellitus. In Fenderson v. West,
12 Vet. App. 119 (1999), the United States Court of Appeals
for Veterans Claims (Court) addressed a similar appeal and
directed that it was specifically not a claim for an
increased disability evaluation. However, the Court did not
provide a specific name for the issue in lieu of "increased
disability evaluation." In the absence of such direction,
the Board has framed the issues as an initial disability
evaluation for tendonitis of the right shoulder and an
initial compensable disability evaluation for cervical
dysplasia, molluscum contagiosum, residuals of excision of
pilar cyst from the scalp, and diabetes mellitus. The
veteran is not prejudiced by such action. The Board has not
dismissed any issue and the law and regulations governing the
evaluation of disabilities is the same regardless of how the
issue is styled.
The Board notes that in its rating decisions, the RO had
evaluated the disorders of molluscum contagiosum and cervical
dysplasia as one disorder. However, according to the
Stedman's Medical Dictionary (27th edition), the molluscum
contagiosum and cervical dysplasia are two different
disorders. The molluscum contagiosum "causes localized
wartlike skin lesions." Cervical dysplasia of the uterine
cervix is an "epithelial atypia involving part or all of the
thickness of cervical squamous epithelium, occurring most
often in young women." (In Kirwin v. Brown, 8 Vet. App.
148, 153 (1995) (three judge panel decision) the Court held
that the Board had erroneously placed "reliance on [a]
medical treatise [] for more than purely definitional
purposes" in violation of the earlier holding in Thurber v.
Brown, 5 Vet. App. 119, 126 (1993) (notice and comment of
reliance on medical evidence outside the record must be given
to the claimant). The corollary of this is that information
from medical sources outside the record can be used for
purely definitional purposes.) Because molluscum contagiosum
and cervical dysplasia appear to be different disorders, the
Board finds that separate evaluations for the two disorders
are warranted. See 38 C.F.R. § 4.14.
The Board also notes that the August 1997 application for
compensation shows a claim for service connection for cysts
removed from the back. The evidence shows that the veteran
underwent surgery for pilonidal cyst and for pilar cyst (see
service medical records dated in October 1995 and December
1996). In the June 1998 rating decision, the RO established
service connection for "pilondal" cyst from the scalp and
used the evidence from the both the pilar and the pilonidal
cyst. The Board, however, finds that the pilar and the
pilonidal cysts are two different types of cyst (one from the
scalp and one from the back). The veteran has been afforded
VA compensation examination for pilar cyst; therefore, the
Board will determine the issue of a compensable disability
evaluation for pilar cyst of the scalp, but as the issue of
service connection for pilonidal cyst has not been
adjudicated by the RO, the Board concludes that the issue of
service connection for pilonidal cyst should be referred to
the RO for appropriate action.
Furthermore, the Board notes that in the March 1999 hearing,
the veteran communicated that her ringing in the ears was
related to active service (see p. 2-3). The RO has not
adjudicated this issue; therefore, it is also referred to the
RO for appropriate action.
The issues of an initial compensable disability evaluation
for cervical dysplasia, molluscum contagiosum, diabetes
mellitus, and residuals of excision of pilar cyst from the
scalp are addressed in the REMAND portion of the decision
below and are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Bilateral hearing loss or VA purposes were not shown
during active service or at any time thereafter.
2. The veteran's tendonitis of the right shoulder has been
shown to be manifested by range of motion of flexion of 0 to
180 degrees; abduction of 0 to 180 degrees; external rotation
of 0 to 80 degrees; internal rotation of 0 to 90 degrees.
Also, at some point, exterior rotation showed 0 to 60 degrees
and internal rotation showed 0 to 40 degrees. X-ray of the
right shoulder was within normal limits.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.385 (2004).
2. The criteria for an evaluation in excess of 10 percent for
the veteran's tendonitis of the right shoulder have not been
met. 38 U.S.C.A. §§ 1155,5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes
5003, 5024, 5257, 5260, 5261 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Service connection may be granted for chronic disability
arising from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b) (2004).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2004).
Service connection for impaired hearing shall be established
when the thresholds for any of the frequencies of 500, 1000,
2000, 3000 and 4000 Hertz are 40 decibels or more; the
thresholds for at least three of these frequencies are 26
decibels; or speech recognition scores using the Maryland CNC
Test are less than 94 percent. 38 C.F.R. § 3.385 (2004).
The Court has held that the provisions of 38 C.F.R. § 3.385
prohibit the award of service connection for hearing loss
where audiometric test scores are within the established
limits. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing
Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
Where a veteran served ninety days or more during a period of
war or during peacetime service after December 31, 1946, and
an organic disease of the nervous system including
sensorineural hearing loss becomes manifest to a degree of
ten percent within one year of termination of such service,
such disease shall be presumed to have been incurred in
service even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1101, 1112,
1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004).
Presumptive periods are not intended to limit service
connection to diseases so diagnosed when the evidence
warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d) (2004).
The veteran's medical evidence consists of service medical
records. At her December 1992 physical examination, the
veteran exhibited pure tone thresholds, in decibels, as
follows:
HERTZ
500
1000
2000
3000
4000
LEFT
5
0
(-)5
(-)5
(-)5
RIGHT
(-)5
0
(-)5
0
0
An April 1993 service medical record shows notation of
erythema and fluid of the ear. An April 1994 service medical
record shows negative findings for recent hearing loss but
shows complaints of pain and trouble clearing the ears.
Diagnosis of viral upper respiratory infection was advanced.
On the April 1997 audiological evaluation for separation of
service, the veteran exhibited pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
5
5
0
5
5
RIGHT
10
5
5
(-)5
5
The separation examination report shows normal findings of
the left and right ear. The August 1999 VA compensation
examination shows that the veteran's hearing to spoken voice
was normal.
The Board has reviewed the probative evidence of record
including the veteran's testimony and statements on appeal.
Bilateral hearing loss for VA purposes was not shown during
active service or at any time thereafter. At the April 1997
separation physical examination and the August 1999 VA
compensation examination, no abnormal findings of the left or
right ear were noted. Moreover, the results of the veteran's
audiological examination do not meet the criteria for hearing
loss for VA purposes. In the absence of any objective
evidence of left or right ear hearing loss for VA purposes
during active service, the Board concludes that service
connection is not warranted.
II. Tendonitis of the Right Shoulder
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2004). The evaluation of the
same disability under various diagnoses is to be avoided.
Disability from injuries to the muscles, nerves, and joints
of an extremity may overlap to a great extent, so that
special rules are included in the appropriate bodily system
for their evaluation. 38 C.F.R. § 4.14.
Tenosynovitis is to be evaluated as degenerative arthritis on
the basis of limitation of motion of the affected joints. 38
C.F.R. § 4.71a, Diagnostic Code 5024. Degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion of the specific joint or joints
involved. When the limitation of motion of the specific
joint or joints involved is noncompensable under the
appropriate diagnostic codes, an evaluation of 10 percent is
applied for each major joint or group of minor joints
affected by the limitation of motion. These 10 percent
evaluations are combined and not added. 38 C.F.R. § 4.71a,
Diagnostic Code 5003.
Favorable ankylosis of the (major) scapulohumeral
articulation warrants a 30 percent evaluation. 38 C.F.R. §
4.71a, Diagnostic Code 5200. Limitation of the motion of
the major arm at the shoulder level from the side warrants a
20 percent evaluation. Diagnostic Code 5201. Recurrent
dislocations of at scapulohumeral joint with infrequent
episodes, and guarding of movement only at shoulder level
warrant a 20 percent evaluation. Diagnostic Code 5202.
Malunion of the clavicle or scapula or impairment of the
function of contiguous joint warrants a 10 percent
evaluation. Diagnostic Code 5203.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. The Court has
held that the RO must analyze the evidence of pain, weakened
movement, excess fatigability, or incoordination and
determine the level of associated functional loss in light of
38 C.F.R. § 4.40, which requires the VA to regard as
"seriously disabled" any part of the musculoskeletal system
that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202
(1995).
The January 1998 VA compensation examination report shows
complaints of pain and stiffness of the right shoulder and
inability to perform repetitious movements of the right
shoulder. The physician reported that the veteran was right-
handed. The veteran denied shoulder dislocation or swelling.
On examination, the veteran did not exhibit abnormality,
swelling, or tenderness to palpation of the right shoulder;
impingement test was negative. The range of motion of the
right shoulder showed flexion of 180 degrees and abduction of
180 degrees with pain at the end of these movements. The
internal and external rotations were 90 degrees without any
pain. Diagnosis of pain of the right shoulder without
objective findings was advanced.
The August 1999 VA compensation examination report shows
complaints of pain, weakness, stiffness, recurrent
subluxation, inflammation, fatigue and lack of endurance.
The veteran reported that repetitive motion increases her
pain. She reported having flare-ups lasting three to four
days and is unable to perform many tasks of daily living.
However, she is able to brush her teeth, dress herself,
shower, cook, vacuum, walk, drive a car, shop, take out the
trash, push the lawnmower, climb stairs, and garden. On
examination, there was tenderness over the biceps tendon
insertion onto the superior humerus. Range of motion was
within normal limits except for rotation. No heat, redness,
swelling, effusion, drainage, abnormal movement, instability
or weakness was appreciated. Shoulder range of motion
revealed flexion of 0 to 180 degrees; abduction of 0 to 180
degrees; external rotation of 0 to 80 degrees; internal
rotation of 0 to 90 degrees. Also, at some point, exterior
rotation showed 0 to 60 degrees and internal rotation showed
0 to 40 degrees. X-ray of the right shoulder was within
normal limits. The examiner agreed with the established
diagnosis - tendonitis of the right shoulder; however, with
the type of work that the veteran engages in, he opined that
the shoulder disability was not a limiting factor except with
lifting.
The veteran's tendonitis of the right shoulder has been shown
to be manifested by limitation of motion due to pain. A 10
percent evaluation is currently in effect under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024.
The veteran's functional limitation of motion of the
tendonitis of the right shoulder has not been objectively
shown to approach favorable ankylosis of the scapulohumeral
articulation or limitation of the motion of the arm at the
shoulder level from the side, the criteria required for
assignment of a compensable evaluation for the shoulder and
the arm. In the absence of such evidence, without an x-ray
confirmation of a disorder for two or more joints, an
evaluation greater than 10 percent is not warranted for
tendonitis of the right shoulder.
The Board acknowledges that the veteran exhibits limitation
of motion in the external and internal rotations; however,
such limitation is not compensable under the Diagnostic Codes
for the shoulder and the arm (see Diagnostic Codes 5201).
Limitation of motion is only evaluated from the side of the
arm; in this case, the veteran has full range of motion for
flexion (0 to 180) and abduction (0 to 180) of the right arm.
Therefore, a higher evaluation is not warranted under
Diagnostic Code 5201.
The Board also acknowledges that the veteran complained of
recurrent subluxation, pain, weakness, flare-up, and fatigue
of the right shoulder; however, on examination, the examiner
assessed that no heat, redness, swelling, effusion, drainage,
abnormal movement, instability or weakness was appreciated.
He further opined that lifting was the only factor that
affected the veteran's daily living. Based on the fact that
the veteran does not exhibit any objective evidence of the
criteria delineated for a compensable evaluation of the arm
and the shoulder (no evidence of ankylosis, recurrent
dislocations, or malunion of the shoulder joints), that the
veteran does not exhibit any objective evidence of the DeLuca
factors other than pain, and that she is able to carry out
the daily activities of living, the Board concludes that the
current 10 percent evaluation adequately reflects the
veteran's tendonitis of the right shoulder.
III. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA requires that VA (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. See also Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In the present case, the
Board finds the RO has satisfied its obligations under the
VCAA.
In July 2004, VA General Counsel issued a memorandum that
stated that VCAA-complying notice can be provided to the
veteran by documents devoted solely to notifying the claimant
of the information and evidence necessary to substantiate the
claim, to indicating which party is responsible for obtaining
which portion of such information and evidence, and to
requesting that the claimant provide any evidence in the
claimant's possession that pertains to the claim. The
General Counsel also held that the notice requirement of
section 5103(a) and section 3.159(b)(1) can be satisfied by a
document such as a statement of the case, a supplemental
statement of the case, or a rating decision. VAOPGCPREC 7-
2004 (General Counsel opinions are binding on the Board. See
38 U.S.C.A. § 7104(c) (West 2002); Splane v. West, 216 F.3d
1058 (Fed. Cir. 2000)).
In this case, through the rating decisions, the September
2003 VCAA letter, the statement of the case, and the
supplemental statement of the case, the veteran has been
informed of the evidence necessary to substantiate her claim
for service connection and an increased rating, the evidence
VA will seek to provide, and the evidence the claimant is
expected to provide. For instance, in the VCAA letter, the
veteran was informed that in order to establish entitlement
to service-connected compensation benefits, the evidence must
show three things: an injury in military service or a disease
that began in or was made worse during military service, or
event in service causing injury or disease; a current
physical or mental disability; and a relationship between her
current disability and an injury, disease, or event in
service. She was also informed that to substantiate a claim
for an increased evaluation, the evidence must show that the
disability had worsened to a degree which meets the criteria
for the next higher evaluation as outlined in the schedule
for rating disabilities.
The September 2003 VCAA letter provided the veteran with the
information and evidence needed to substantiate the claims,
and that letter and the February 1999 statement of the case
and rating decision of June 1998 provided the veteran with
the information indicating which party is responsible for
obtaining which portion of such information and informed her
of the opportunity to provide any evidence in her possession
that pertains to the claims. For example, in the letter, VA
informed the veteran that she may complete VA Form 21-4142
for VA to request medical records from private physicians and
facilities and that she should contact the RO if she wished
to submit additional evidence. The rating decision provided
the evidence that had been obtained and used by VA in making
the decision.
The Board further notes that information regarding 38 C.F.R.
§ 3.159 was sent to the veteran after the RO's decision that
is the basis for this appeal. See Pelegrini II, No. 01-944,
slip op. at 8-11 (June 24, 2004). The Board finds that any
defect with respect to the timing of the VCAA notice
requirement was harmless error. All the VCAA requires is
that the duty to notify is satisfied, and that claimants be
given the opportunity to submit information and evidence in
support of their claims. Once this has been accomplished,
all due process concerns have been satisfied. See Bernard v.
Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App.
553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).
Here, although the complete VCAA information was not given to
the veteran prior to the first agency of original
jurisdiction (AOJ) adjudication of the claim, the SOC, SSOC,
and other VA correspondence were provided by the AOJ prior to
the transfer and certification of the appellant's case to the
Board, and its content fully complied with the requirements
of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). See
VAOPGCPREC 7-2004 (June 24, 2004). Therefore, the claimant
has been provided with every opportunity to submit evidence
and argument in support of her claims, and to respond to VA
correspondence.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. The RO
satisfied its duty to assist the veteran by obtaining service
records, VA treatment records, and VA compensation
examinations. The veteran has been asked to provide
information she wants VA to consider when making its decision
on her claims but has not submitted any such information.
She was provided an opportunity to testify before a member of
the Board but failed to appear for a scheduled hearing. The
Board concludes, therefore, that a decision on the merits at
this time with respect to the issues of service connection
for bilateral hearing loss and an initial evaluation for
tendonitis of the right shoulder do not violate the VCAA, nor
prejudice the appellant under Bernard v. Brown, 4 Vet. App.
384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of this duty could be no more than
harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed.
Cir. 2004); VAOPGCPREC 7-2004 (June 24, 2004).
ORDER
Service connection for bilateral hearing loss is denied.
An evaluation in excess of 10 percent for the veteran's
tendonitis of the right shoulder is denied.
REMAND
Regarding the issues of an initial compensable disability
evaluation for molluscum contagiosum (that causes "wartlike
skin lesions") and residuals of excision of pilar cyst from
the scalp, the applicable rating criteria for skin disorders
was amended effective August 30, 2002. See 67 Fed. Reg.
49590-49599 (July 31, 2002) and corrections 67 Fed. Reg.
58448-58449 (Sept. 16, 2002). There is no indication that
the veteran has been adequately notified of the new criteria,
or that she has been given an opportunity to submit evidence
and argument in support of her claim under the new
regulation. Second, the most recent VA examination reports
covering the veteran's molluscum contagiosum is dated in
August 1999. This report does not contain findings which are
adequate to evaluate molluscum contagiosum under the new
version of 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806 (as
in effect August 30, 2002), and there are no other
examination reports in the claims files that are adequate for
this purpose. Therefore, a remand is required for the issue
of an initial compensable evaluation for molluscum
contagiosum and residuals of excision of pilar cyst from the
scalp.
Regarding the issue of an initial compensable disability
evaluation for cervical dysplasia, the Board notes that the
August 1999 Pap smear report was not included with the
examination report (see November 1999 correspondence
electronic mail). Moreover, it is unclear from the August
1999 VA compensation examination whether a treatment is
required for her cervical dysplasia as delineated under
Diagnostic Code 7612.
Regarding the issue of an initial compensability disability
evaluation for diabetes mellitus, the veteran indicated that
she received private treatment in June 1999 (see March 1999
Substantive Appeal). Documentation of the cited treatment is
not of record. VA should obtain all relevant treatment
records that could potentially be helpful in resolving the
veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82
(1990).
Under the circumstances, this case is remanded for the
following:
1. Ask the veteran to provide any evidence in her possession
that pertains to the claims.
2. Request that the veteran provide information as to all
treatment of diabetes mellitus, including the name and
address of the health care provider. Upon receipt of the
requested information and the appropriate releases, contact
the identified health care provider and request that he/she
forward copies of all available clinical documentation
pertaining to treatment, including the June 1999 treatment
for diabetes mellitus, for incorporation into the record.
3. Copies of all VA clinical documentation, not already of
record, should be associated with the claims file. This
should include the August 1999 Pap smear report. If such
document cannot be identified, a record of a negative
response should be included in the claims folder.
4. Schedule the veteran for an examination to determine the
nature and extent of the residuals of her service-connected
residuals of cervical dysplasia and molluscum contagiosum, to
include:
a) (with regard to cervical dysplasia) whether the
symptoms require continuous treatment or cannot be
controlled by continuous treatment;
b) (with regard to molluscum contagiosum) whether
molluscum contagiosum is shown at least 5% but less
than 20%, between 20% and 40%, or more than 40% of
the entire body or whether intermittent systemic
therapy such as corticosteroids or other
immunosuppressive drugs are required and for what
total duration they have been required during the
past 12-month period.
5. Provide the veteran with adequate notice of the date
and place of any VA examination. A copy of all
notifications must be associated with the claims folder.
The veteran is hereby advised that failure to report for
a scheduled VA examination without good cause shown may
have adverse effects on her claims. 38 C.F.R. § 3.655.
6. Thereafter, readjudicate the claims for an initial
compensable disability evaluation for cervical dysplasia,
molluscum contagiosum, diabetes mellitus, and residuals of
excision of pilar cyst from the scalp. Regarding the issues
of an initial compensable evaluation for molluscum
contagiosum and residuals of excision of pilar cyst from the
scalp, consider the new criteria for skin disorders (see
VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed.
Cir. 2003). If the claims remain denied, provide the veteran
and her representative with a supplemental statement of the
case. The supplemental statement of the case must contain
notice of all relevant actions taken on her claims, including
a summary of the evidence and discussion of all pertinent
legal authority. Allow an appropriate period for response.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs